This Regular First Appeal is directed against the order dated 8-6-2000 of the learned Referee Judge, Mardan whereby he dismissed the reference filed by the appellant on the ground that it was not filed by a competent person within the terms of section 50(2) of the Land Acquisition Act.
2. The learned counsel appearing on behalf of the appellant by placing reliance on the case of Haji Muhammad Pervez and 3 others v. Engineer Azizullah Khan and 4 others PLD 1999 Peshawar 53 and the case of Messrs Ittehad Cement Industries v. Government of Balochistan through Secretary, Industry, Quetta and 4 others 1997 CLC 562 contended that in view of the judgment given by the Shariat Appellate Bench of the Hon'ble Supreme Court in Shariat Appeal No,7 of 1989, the right to make reference, file an appeal and cross-objection has been given to the Federal Government and the Acquiring Department therefore, the reference was competent and it should not have been dismissed without adverting to the merits of the case.
3. As against that the learned counsel appearing on behalf of the respondents firstly contended that this appeal being connected with Civil Revision No,610 of 2003 be heard therewith, moreso when, an order in this behalf has been made by his Lordship Mr. Justice Talaat Qayum Qureshi on 28-10-2003. The learned counsel by placing reliance on the case of Pakistan through Military Estate Officer, Kharian Cantt. And another v. Abdul Hayee Khan through Legal Heirs and 5 others PLD 1995 Supreme Court 418 and the case of Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others 1991 SCM R 2193 next contended that in view of the provisions contained in sections 18 and '50(2) of the Land Acquisition Act, right of reference or appeal being a creation of statute cannot be exercised by any person unless so conferred on him under the statute.
4. I have gone through the record carefully and considered the submissions of the learned counsel for the parties.
5. The impugned order would reveal that reference filed by the appellant was dismissed mainly on the ground of its being incompetent without knowing that the law has since been amended and this right has been conferred on the Federal Government including the Acquiring Department as it was held by the Shariat Appellate Bench of the Hon'ble Supreme Court in Shariat Appeal No,7 of 1989, the relevant paragraph whereof is reproduced hereunder for the facility of reference which reads as under:-- "We order that the aforementioned sections of the Act shall be amended so as to provide for right of making reference, filing cross-objections and appeal to Federal Government or the concerned department of the Federal Government or of the Provincial Government as also the Company or the local authority for whose benefit the acquisition is made. In that context the proviso to section 50(2) of the Act shall be deleted."
6. Another relevant paragraph of the aforesaid judgment may also be quoted with advantage which is reproduced as below:-- "The grounds which weighed with the Federal Shariat Court in making the recommendations are cogent and sound. The amendments in the aforesaid provisions of the Act would make the law more consistent and equitable. It is against all canons of principles and equity that the Provincial Government may have a right to refer the matter to the Court and file a cross-objection but the Federal Government and its department are not given such a right. It would amount to negation of justice and is repugnant to the Injunctions of Islam. The wisdom behind such amendment would be to give all the parties a fair opportunity to prove regarding the reasonable amount of compensation to be awarded. A party who has to pay the money from its own funds should have been given a chance to adduce evidence for the purpose of determining the amount of compensation. The proposed amendments would advance remedy to an aggrieved party. It would be fair and just to give a right to make a reference, file a cross-objection, lead evidence and file an appeal to those parties who have been denied such a right under sections 18, 22-A, 50 and 54 of the Land Acquisition Act."
7. When considered in this background, I have no hesitation to hold that the learned Referee Judge has not acted in accordance with the declared law of the land by dismissing the reference without adverting to the merits of the case. The judgments rendered in the case of Haji Muhammad Pervez and 3 others v. Engineer Azizullah Khan and 4 others and Messrs Ittehad cement Industries Ltd. v.
Government of Balochistan through Secretary, Industry, Quetta and 4 others (supra) cited at the bar by the learned counsel for the respondents are therefore, not relevant to the instant case as those deal with the appeals filed before the aforesaid amendment. The argument that this appeal being connected with Civil Revision No,610 of 2003 be heard therewith as similar question has been involved therein is incorrect altogether, since no question of competency or otherwise of the reference has been agitated in that, therefore, this appeal as well as the civil revision mentioned above are to be disposed of independently.
8. As a sequal to what has been discussed above, this appeal is allowed, the impugned order is set aside and the case is sent back to the learned Referee Judge for decision afresh in accordance with law after giving an opportunity to produce evidence in support of their respective claims. The parties are directed to appear before the learned Referee Judge on 24-12-2003.